Judge asked to dismiss Fairmont State lawsuit filed against natural gas and transmission company

Jul. 27—FAIRMONT — Attorneys for Eastern Gas Transmission and Storage asked Marion County Circuit Court Judge Patrick Wilson Wednesday to dismiss their company from a lawsuit Fairmont State University filed last year against Hope Gas.

The lawsuit claims contaminants feeding from three of the five gas lines owned by the defendants significantly damaged boilers, gas lines, valved and regulators and other structures and equipment on the college campus on September 24, 2021. Fairmont State, in the suit, accused Hope Gas of negligence and violations of West Virginia Commercial Code.

"As the provider of natural gas service to FSU, Defendants owed Plaintiff a duty to deliver natural gas in a reasonably prudent manner and of a reasonable quality to serve its intended purpose on the campus of FSU," Fairmont State's filing states. "Defendants breached that duty to FSU when they failed to deliver natural gas to campus via a system designed, developed and deployed to prevent contamination of the natural gas delivered therein."

Fairmont State filed its lawsuit on June 28, 2023. The university seeks damage on 13 counts, such as civil penalties, aggravation, damages, loss of use and other items.

Hope Gas responded by denying the allegations made by Fairmont State. Part of their response also addresses the contaminants allegedly found by the University. Hope Gas points out the contaminants were found in pipeline operations maintained by EGTS. As such, if there were contaminants, Hope Gas said it may be EGTS who is at fault, not Hope Gas. Therefore, EGTS, and not Hope Gas, should be held responsible for the damages. Fairmont State added ETGS to the suit on March 12, 2024.

EGTS filed its own motion to dismiss the suit.

"Plaintiff's Amended Complaint repeated the allegations and causes of actions stated in the original complaint and simply added EGTS as a party without any specificity or facts or explanation as to EGTS's alleged involvement in the matter," ETS attorneys wrote in its motion. The company also pointed out that Fairmont State has never been an EGTS customer, and EGTS has never provided gas to Fairmont State.

EGTS also claimed the negligence claims filed by Fairmont State are barred by a two-year statute of limitations. Furthermore, since Fairmont State replaced all the equipment two years ago, EGTS considers that move to be the equivalent of spoiling evidence.

"Given the fact that Plaintiff brought this claim, it knew, or should have known, that destroying such evidence without providing EGTS an opportunity to inspect and test would cause severe prejudice to EGTS," the motion states. It also points out Hope Gas made the accusation against EGTS without offering any basis of belief, against West Virginia code. EGTS took exception to Fairmont State naming EGTS solely on Hope Gas's claim without providing any supporting facts or reasoning.

Fairmont State argued that by the time it became aware of EGTS's involvement, the statute of limitations had already passed.

Despite that, Fairmont State attorneys amended the complaint as soon as possible after learning of EGTS's role in the matter. Fairmont State provided notice under Rule 15 of the West Virginia Rules of Civil Procedure, which states a pleading may be amended with permission from a judge, which Fairmont State received. Also, the university argued the statute of limitations does not apply because the amended complaint relates back to the original one, which was filed within the limitation.

"Eastern Gas can offer no support for its perplexing position that it should have been served with the original Civil Complaint in this case within the applicable statute of limitations period," Fairmont State argued in its response. The university invokes Rule 15 once more, which EGTS also offered as its reason for dismissal. Rather, Fairmont State replied Rule 15 allows parties to amend complaints despite a statute of limitation when parties are all notified of the facts and claims related to the amendment.

The parties met in court earlier this week to make their arguments in front of Judge Wilson. Omar Ahmad represented Fairmont State, Matt Elshiaty and Ryan Simonton represented Dominion Energy and Hope Gas, and Matthew Casto represented EGTS.

"M. Casto argues his motion to dismiss stating the plaintiff missed the two year statute of limitations by approximately two months and the UCC does not apply," read the clerk's notes. "Mr. Ahmad responds to Mr. Casto's arguments. Mr. Casto states not prepared to address the motion to compel and moves for a continuance on that motion //No opposition for parties."

Fairmont State did not respond to a request for comment by press time. A phone call to the office of Kay, Casto and Chaney was picked up by a secretary who forwarded the call to voicemail, only for the call to be disconnected, and then forwarded it to a voicemail box that was full.

Reach Esteban at [email protected]